Towards the Establishment of Constitutionalism in Russia I. INTRODUCTION The liberal and democratic trends that began circulating during the Enlightenment as a result of such thinkers as John Locke, Jean- Jacques Rousseau, and Montesquieu' have become widely accepted as the dominant constitutional paradigm. Not only has democracy estab- lished itself firmly on an institutional basis, but democracy has also become a benchmark by which to measure a nation's commitment to the rights and freedoms of its citizens. In the wake of the Cold War, and following the breakup of the Soviet Union, emerging countries, and developed countries as well, are faced with the challenge of dem- onstrating to their people and to the international community that individual rights and freedoms will be guaranteed through political stability. The most effective method of embodying such a guarantee is by the promulgation of an enforceable constitution which delineates the general and specific rights and duties of that country's citizens. During the era of the American Revolution, a constitution was defined as establishing the Basis and ground work of Legislation, and ascertain[ing] the Rights Franchises, Immunities and Liberties of the people, How and how often officers Civil and military shall be elected by the people, and circumscribing and defining the powers of the Rulers, and so affording a sacred Barrier against Tyranny 2 and Despotism. This note will be divided into three sections. The first part introduces general principles of constitutionalism. The second part analyzes the development of constitutional rights in Russia and in the United States. The third part compares the concepts underlying the United States Constitution with constitutional changes that are currently taking place in Russia. 1. Charles Louis de Secondat, Baron de La Bride et de Montesquieu. 2. Tom N. McInnis, Natural Law in the American Revolutionary Struggle, 26 LEGAL STUDIES FORUM 41, 49 [hereinafter Mclnnis]. See also BLACK'S LAW DICTIONARY 163 (5th ed. 1983) (A constitution is "[t]he organic and fundamental law of a nation or state . laying the basic principles to which its internal life is to be conformed . ."). IND. INT'L & CoMP. L. REV. [Vol. 3:271 II. OVERVIEW OF CONSTITUTIONALISM "In the last two centuries constitutionalism has become established in a position of co-legitimacy with democracy." 3 Because "the evolution of political institutions closely followed the evolution of the doctrine of constitutionalism, "4 it is necessary to present a general outline of the development of constitutionalism. While constitutions have been used for centuries to order the "en- actment and implementation of public policies, . the line of authority between rulers and ruled" only began to become clear during the Roman era. 5 Modern constitutionalism developed during the monarchical period, when rulers held power as a result of so-called God-given, or natural and inherent, rights. John Locke's conception of a social contract which was binding on the ruler and ruled alike became the generally accepted view. 6 The belief that all humans were subject to the same laws facilitated the rise in importance of legislatures to express, in Rousseau's words, the general will.7 From this eighteenth-century idea of natural and inalienable rights, which would today be called human rights, flows the view that government is an institution created by the people to secure those rights.8 Political cohesion was achieved in the monarchical system through the common framework of a belief in God and in an other-worldly accountability for wrong-doing. Both the Church and the nobility held considerable power over the people in the monarchical system.9 However, as notions of rights began to spread, and legislatures began to exercise the powers they held as the voice of the people, confusion arose over the jurisdiction and responsibilities of each of the two or more bodies exercising authority. It was, therefore, in each group's best interest to establish regular procedures for the exercise of power, and in this way constitutions came to play an integral role in government. 3. WILLIAM G. ANDREWS, CONSTITUTIONS AND CONSTITUTIONALISM 22 (3d ed. 1968) [hereinafter ANDREWS]. 4. Id. at 19. 5. Id. 6. EDWARD MCWHINNEY, CONSTITUTION-MAKING: PRINCIPLES, PROCESS, PRAC- TICE 68 (1981) [hereinafter MCWHINNEY]. 7. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 76 (Maurice Cranston trans., Penguin Classics 1968) (1762). 8. MCWHINNEY, supra note 6, at 68. 9. ANDREWS, supra note 3, at 19-20. "According to medieval scholastics, the Church and the secular authorities had co-ordinate powers." Id. 19931 CONSTITUTIONALISM IN RUSSIA With the rise of absolute monarchs, emerging nation-states had all power lodged in one central authority. Both the Church and the nobility saw their influence wane. Among the first monarchs to succeed in uniting both temporal and spiritual power were King Henry VIII, who ruled England in the sixteenth century, and Louis XIV, King of France in the late seventeenth and early eighteenth centuries. ° Revolutions were necessary to abrogate the effects of such despotic regimes and to instill sovereignty in the people of these countries. Constitutions have become prominent following the demise of absolute monarchs or governments. Attempts by a despotic leader to transcend the traditional framework of the monarchical system and to impose a complete displacement of citizens' rights have been repeated in the United States and in Russia prior to the development of stable constitutional systems in those coun- tries. The monarchical expropriation of the American colonists' natural rights and liberties was made by King George III. The United States Declaration of Independence charges that "[t]he history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.'"' In the Soviet Union, the head of the Communist party wielded power comparable to that of a monarch or czar.' 2 The Soviet system embodied what has come to be known as totalitarianism, a system more repressive than dictatorial absolute monarchies. "Unlike a dictatorship, where the ruling elite guilty of the regime's crimes is tiny, a totalitarian regime creates a whole class of rulers [guilty of crimes against the regime].' ' 3 The Communist party professed to transcend spiritual boundaries by proclaiming that there was nothing beyond the state. "Soviet law is precisely the expression of what is expedient for the ' 4 construction of socialism and the fight for socialism.' For a constitution to be of value in protecting a society against tyrannical excesses, the rule of law must have a strong foundation, because a constitution means nothing if the law is not supreme. "Laws 10. Id. at 20. 11. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 12. Some, in fact, question whether or not the 1917 "Revolution" was really a revolution at all. See Abbott Gleason, Russia: The Meaning of 1917, ATLANTIC MONTHLY, Nov. 1992, at 30. 13. Vladimir Bukovsky, Totalitarianism in Crisis: Is There a Smooth Transition to Democracy?, in TOTALITARIANISM AT THE CROSSROADS 15 (Ellen Frankel Paul ed., 1990) [hereinafter Bukovsky]. 14. David Forte, Western Law and Communist Dictatorship, 32 EMORY L.J. 135, 181 (1983). IND. INT'L & COMP. L. REV. [Vol. 3:271 change, but the Law must remain, and with it the fundamental values; ' 15 a law which contravenes that Higher Law is not a law at all. Moreover, the fundamental values embodied in a constitution must be contemporary, not based on archaic principles. 16 When the Soviet Union developed its first constitution, it did not attempt to incorporate the Enlightenment ideas of rights because such a notion was considered by Marxist-Leninists to be based on the exploitation of the working class by the capitalist class, an archaic condition which communism professed to destroy. According to communist dogma, capitalism was merely an evo- lutionary step on the human ladder that would ascend to communism. The notion of a rule of law was antithetical to communism's main tenet: as the workers, or proletariat, developed consciousness of their exploi- tation by the capitalist class, bourgeois laws would disappear, resulting in 'homo Sovieticus.' 'Homo Sovieticus' was to be the end product of human development, a being so perfect that laws would not be toler- ated.17 One element of Soviet legal ideology was the rejection of the notion that man by his very nature is endowed with certain inalienable rights. Following the destruction of communism in the Union of Soviet Socialist Republics, Russians are faced with the task of formulating a constitution which will direct their government and society. A consti- tutional commission under the direction of Oleg Rumantsyev produced a draft constitution in 1992 which has drawn heated discussion from all quarters of Russian life.' 8 Just as the fundamental values asserted in the Declaration of Independence sought to guarantee American cit- izens the right to "life, liberty and the pursuit of happiness,"' 19 and the United States Constitution "secures the blessings of liberty to ourselves and our posterity, ' 20 the draft Constitution of the Russian Federation guarantees "the rights and liberties of man and citizen according to the generally accepted principles and rules of international law. "21 15. MAURO CAPPELLETTI, JUDICIAL REVIEW IN THE CONTEMPORARY WORLD Vii (1971). 16. MCWHINNEY, supra note 6, at 69. 17. Christopher Osakwe, The Four Images of Soviet Law: A Philosophical Analysis of the Soviet Legal System, 21 TEX. INT'L L.J. 1, 4 (1985). 18. Andrei Chernov, Russia Without Despotism and Despots, Moskovskiye Novosti, Apr. 5, 1992, at 6, available in LEXIS, Nexis Library, Intl File. 19. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 20. U.S. Const. pmbl. 21. Kontstitutsiia RF 5 1, art. 2, para. 2 (1992) (Russia) (draft) [hereinafter Draft], available in LEXIS, Nexis Library, Intl File.